Reporter's Privilege Compendium

I. Introduction: History & Background

New Hampshire does not have a shield law, but the New Hampshire Supreme Court (the “Court”) has recognized a qualified constitutional privilege to protect the identity of confidential news sources. There have been few recent efforts to enact a shield law statute, although none has been successful. There has been only one recent case involving the reporter's privilege, State v. Gibson, 170 N.H. 316 (2017), discussed hereinafter. As the First Circuit Court of Appeals observed in Gray v. St. Martin's Press, 221 F.3d 243, 253 (2000), “New Hampshire law on the qualified confidential source privilege for reporters "is not a model of clarity." 221 F.3d at 253.

II. Authority for and source of the right

A. Shield law statute

B. State constitutional provision

The Court in Opinion of the Justices, 117 N.H. 386 (1977), a civil case, and State v. Siel, 122 N.H. 254 (1982), a criminal case, stated that the qualified privilege is based on Part I, article 22 of the New Hampshire Constitution, which reads: “Free speech and Liberty of the press are essential to the security of Freedom in a State: They ought, therefore, to be inviolably preserved.”

In Opinion of the Justices, 117 N.H. 386, 373 A.2d 644 (1977), the Court was asked whether the Senate, in a statutory proceeding to remove the sitting Director of Probation, could compel a reporter to disclose the sources of information that he used in preparing a series of articles criticizing the Department of Probation. It stated:

Our constitution quite consciously ties a free press to a free state, for effective self-government cannot succeed unless the people have access to an unimpeded and uncensored flow of reporting. News gathering is an integral part of the process.

* * *

We hold only that in this civil proceeding involving the press as a nonparty, the balance is struck in favor of the press. See N.H. Const. pt. 1, art. 22. We need not decide the scope of the privilege, whether it is absolute, who is a reporter, what qualifies as 'press,' what the situation would be if criminal proceedings were at issue, or whether libel actions would require disclosure.

117 N.H. at 389.

Five years later, the Court held that the qualified privilege applies in criminal cases where the reporter asserted the privilege to protect confidential sources. State v. Siel, 122 N.H. 254, (1982); The privilege did not apply where a reporter sought to protect public information. State v. Gibson, 170 N.H. 316 (2017) (statements made by the defendant during an interview). Nor did it apply in a libel case brought by a public official where the "sources are essential to a libel plaintiff's case." Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980). But the privilege did apply in a case where an online publisher sought to protect the identity of the source of a “loan chart” prepared by the plaintiff. Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 237 (2010). The other questions deferred by the Court in Opinion of the Justices have remained unanswered.

C. Federal constitutional provision

In State v. Siel the Court relied upon Branzburg v. Hayes, 408 U.S. 665 (1972), stating:

Our review of Branzburg v. Hayes . . . convinces us that a majority of the justices on the United States Supreme Court recognized that a reporter had a qualified first amendment privilege to protect confidential sources. . . . Most courts that have analyzed Branzburg have reached that same conclusion.

D. Other sources

III. Scope of protection

A. Generally

Given the lack of a shield statute, and the paucity of cases decided by the Court, it is difficult to delineate the scope of protection that is afforded by the New Hampshire Constitution. That said, the Court has spoken expansively about the rights of the press to gather and disseminate the news. See, e.g., Opinion of the Justices¸ 117 N.H. 386, 389 (1977).

B. Absolute or qualified privilege

Although Opinion of the Justices declined to decide whether the privilege was absolute or qualified, 117 N.H. at 389, subsequent cases have established that the privilege is a qualified one. Siel, 122 N.H. at 259 (the New Hampshire Constitution "provides a qualified privilege for reporters").

C. Type of case

1. Civil

2. Criminal

The qualified privilege applies in criminal cases, however, "because the individual citizen's civil rights must be also protected, 'a news reporter's privilege is more tenuous in a criminal proceeding than in a civil case.'" State v. Siel, 122 N.H. 254, 259 (1982).

In State v. Gibson, 170 N.H. 316 (2017), the Court declined to apply the privilege where the State, not the defendant, sought to the reporter’s testimony at trial. All the information the State sought had been published by the reporter. The Court stated there is no newsgathering privilege where the reporter “refuse[s] to testify in a criminal trial about non-confidential, published information obtained from identified sources.” 170 N. H. at 322.

3. Grand jury

D. Information and/or identity of source

The cases establish that the privilege protects the identity of a source. Opinion of the Justices, 117 N.H. 386 (1977). In State v. Siel, the Court ruled:

a defendant may overcome a press privilege to withhold a confidential source of news only when he shows: (1) that he has attempted unsuccessfully to obtain the information by all reasonable alternatives; (2) that the information would not be irrelevant to his defense; and (3) that, by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case.

Id. at 259. Continuing, it stated:

The third prong requires, first, that the information sought by the defendant must be material, in that it must go to the heart of the case. It must be helpful to the defendant's efforts to disprove an element of the crime, prove a defense, or reduce the classification or gradation of the crime charged. A matter not material, as here defined, is information sought solely to show a prior inconsistent statement by a witness.

Next, the defendant must show that there is a reasonable possibility that the information will affect the verdict. Requiring the defendant to demonstrate a probability that the information will affect the verdict would place too severe a burden on him, while allowing the privilege to be overcome by a demonstration of a mere possibility that the information will help the defendant would permit mere speculation to displace a constitutionally-grounded privilege.

Id. (citations omitted).

In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court adopted a standard for trial courts to use when “a plaintiff requests disclosure of the identity of an anonymous defendant who has posted allegedly defamatory material on the Internet.” 160 N.H. at 237. The Court held that the appropriate standard was the Dendrite test, in which the trial court “balance[s] the equities and rights at issue,” which include the plaintiff’s right to protect its reputation and the defendant’s right to anonymous free speech. Id. at 239 (citing Dendrite International, Inc. v. Doe Number 3, 775 A.2d 756 (Ct. App. Div. 2001) (internal quotation marks omitted)). The Court stated that first the plaintiff shall set forth a prima facie case, followed by a balancing test:

[T]he trial court should first require the plaintiff to undertake efforts to notify the anonymous poster that they are the subject of a subpoena or application for an order of disclosures, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application . . . . The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.

160 N.H. at 239. The Court reiterated that the process must be undertaken on a case-by-case basis.

E. Confidential and/or nonconfidential information

Before State v. Gibson, the opinions of the Court did not expressly differentiate between the protection afforded to confidential, as opposed to non-confidential, sources. In State v. Gibson, 170 N.H. 316 (2017), the Court refused to extend the privilege to shield a reporter from a subpoena directing him to testify in a criminal proceeding against the defendant, who also was his source. The Court reasoned that, because the information sought was published, non-confidential, and sought in a criminal proceeding, the privilege did not apply. Id. at 322.

G. Reporter's personal observations

H. Media as a party

In Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980), the Court did not reject the privilege because the publisher asserted the privilege. Rather, it ruled the privilege did not apply where the plaintiff had to prove “actual malice” under the New York Times rule.

In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court ruled that a website publisher could assert the privilege to protect a confidential source. The publisher posted an article about administrative action taken against the plaintiff that included a link to a loan chart provided by the source. The Court rejected the plaintiff’s argument that the privilege did not apply because the defendant was not a member of the traditional media. 160 N.H. at 233-34. It concluded that, because the defendant’s “website serves an informative function and contributes to the flow of information to the public,” the defendant was a “reporter for purposes of the newsgathering privilege.” Id. at 234.

I. Defamation actions

In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court held that the First Circuit’s balancing test “applies to a trial court’s review of a petition seeking disclosure of an anonymous source from the press to ascertain the identity of a potential defendant in a defamation action.” But in Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980), the Court refused to apply the privilege in a case brought by a public official where the source was essential to the plaintiff’s claim.

IV. Who is covered

A. Statutory and case law definitions

There are no definitions in statutes or case law. The Court has rejected the argument that the privilege only applies to established media entities or entities that are engaged in investigative reporting. See Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 233 (2010). According to the Court:

Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion. The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures.

b. Editor

c. News

There is no statute or case defining "news.” But see the Court’s statement in Mortgage Specialists, Inc. set forth in part IV.A above (“every sort of publication which affords a vehicle of information and opinion”).

2. Others, including non-traditional news gatherers

B. Whose privilege is it?

There is no statute on point. New Hampshire cases include reporters and publishers asserting the privilege. See, e.g., Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980); State v. Siel, 122 N.H. 254 (1982). In Gray v. St. Martin's Press, the First Circuit Court of Appeals assumed that the privilege could be asserted by the author of a book, as well as by the publisher. Gray v. St. Martin's Press, 221 F.3d 243 (2000).

5. Service of police or other administrative subpoenas

B. How to Quash

1. Contact other party first

The rules governing proceedings in the trial courts of New Hampshire require that an effort be made to obtain the concurrence of the other party or their counsel prior to the filing of any motion seeking relief from the court. See, e.g., Superior Court Rules 11(c) & 29(e).

d. Language

e. Additional material

There are few New Hampshire cases that address this issue. At a minimum, the moving party should consider obtaining affidavits from the reporter, editor and/or publisher setting forth the harm to press freedoms that would occur if the motion to compel is granted.

4. In camera review

a. Necessity

There is no requirement that a court conduct an in camera review. However, in State v. Siel, 122 N.H. 254 (1982), the Court held that, after the trial judge "is satisfied on the facts then before him that the privilege should fail, the trial judge may also hold an in camera hearing with the reporters and, if necessary, with the source before releasing the information to the defendant." In camera review of sealed documents is common in proceedings to obtain access to those documents. SeePetition of Keene Sentinel, 136 N.H. 121 (1992).

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Once a member of the news media demonstrates that they are covered by the privilege, a defendant in a criminal case may overcome the privilege by showing:

(1) the defendant has attempted unsuccessfully to obtain the information by all reasonable alternatives;
(2) the information would not be irrelevant to his defense; and
(3) by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case.

See State v. Siel, 122 N.H. 254, 259-60. The First Circuit Court of Appeals endorsed the same test in a libel action with the media defendant. See Gray v. St. Martin's Press, 221 F.3d 243, 253 (2000). The burden of proof is discussed at length in the opinion issued in New Hampshire v. Siel, 7 Med. L. Rptr. 1904 (1981), by Justice David Souter, then a trial judge in the New Hampshire Superior Court.

B. Elements

1. Relevance of material to case at bar

There is no Supreme Court case that further amplifies the standard as set forth in State v. Siel, 122 N.H. 254 (1982), which requires that in a criminal case "the information sought by the defendant must be material, in that it must go to the heart of the case." Id. at 260. The trial court opinion in Siel has a lengthy discussion of relevance and "materiality." New Hampshire v. Siel, 6 Media L. Rptr. 1904, 1911-14 (1981); see Siel, 122 N.H. at 259 (“adopt[ing] the well-reasoned opinion of the trial judge”).

2. Material unavailable from other sources

As stated in State v. Siel, the privilege to protect a confidential source may be overcome only upon a showing, inter alia, that a defendant "has attempted unsuccessfully to obtain the information by all reasonable alternatives." In Gray v. St. Martin's Press, 221 F.3d 243, 253, the First Circuit characterized the first prong of the Siel test as "the requirement of exhausting other means," and observed that "if Gray were found to have exhausted all reasonable means of identifying the source and [the author] still refused to reveal her source, Gray would have been entitled to a presumption that no source existed."

a. How exhaustive must search be?

b. What proof of search does a subpoenaing party need to make?

No case expressly addresses this issue. In the Siel case the Court stated, “a defendant may overcome a press privilege to withhold a confidential source of news only when he shows . . . .” 122 N.H. at 259. Since source disclosure is a discovery issue, the standard of proof is most likely “more probable than not.”

c. Source is an eyewitness to a crime

3. Balancing of interests

There is no statutory law that requires a judicial balancing of interests in determining whether to quash the subpoena. In a trial setting, State v. Siel and Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. each used a balancing test in determining whether the source had to be disclosed.

4. Subpoena not overbroad or unduly burdensome

There is no statutory or case law that exempts subpoenas issued to the media from general guidelines for discovery set forth in Superior Court Rule 35(b), and the case law governing discovery. Discovery may be limited by the court if the discovery requests have the purpose or effect of harassing, embarrassing, annoying or invading the privacy of, or to impose an undue burden or expense or an oppressive hardship on, a party.

5. Threat to human life

6. Material is not cumulative

There is no case law or statute that expressly addresses the significance of whether the material or information subpoenaed would be cumulative. However, if the information sought is cumulative, it is unlikely that the subpoenaing party could successfully satisfy the first prong of the Siel test, i.e., that he or she has been unable to obtain the information through alternative means.

d. Other elements

3. Agreement to partially testify act as waiver?

VII. What constitutes compliance?

A. Newspaper articles

There is no statutory or case law addressing this issue, however, it is unlikely that a reporter or editor would be required to testify in order to authenticate a newspaper article. Ordinarily, it would be expected that before the trial or hearing, the parties would stipulate as to the admissibility of certain exhibits, which would likely include the article or the newspaper.

C. Testimony vs. affidavits

D. Non-compliance remedies

1. Civil contempt

The New Hampshire Supreme Court has specifically stated that "the trial court is free to exercise its contempt power to enforce its [order to disclose]," Downing v. Monitor Publishing Co., Inc., 120 N.H. at 387, which would include the power to levy fines or to jail the reporter. There are no instances of a trial court finding a reporter in contempt, levying a fine, or ordering a reporter to jail.

b. Jail

2. Criminal contempt

3. Other remedies

Where the New York Times rule applies in a case against the media and the reporter refuses to disclose a confidential source after being ordered to do so, "there shall arise a presumption that the defendant has no source," which may be removed by disclosure "a reasonable time before trial." Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980).

VIII. Appealing

A. Timing

1. Interlocutory appeals

There are no specific rules or procedures related to the timing of an appeal from a denial of a motion to quash. That said, a party seeking to appeal should expeditiously apply to the lower court that issued the decision for permission to appeal to the Supreme Court. See Supreme Court Rule 8. If permission is granted, an appeal would be filed with the Supreme Court, which has the discretion to reject the appeal. In that event, if the issue were not moot it could be raised at the conclusion of the case or, possibly, at a later, more appropriate stage.

2. Expedited appeals

While there are no specific court rules, statutory provisions or cases setting forth the procedure for an expedited appeal, the Supreme Court will entertain a motion to expedite. While there have not been expedited appeals involving the denial of a reporter's motion to quash, on several occasions the Supreme Court has entertained expedited appeals of court access cases. E.g. Keene Pub. Corp. v. Keene District Court, 117 N.H. 959 (1977).

B. Procedure

1. To whom is the appeal made?

2. Stays pending appeal

Absent a court order, the order of the trial court is not stayed pending appeal. There is no case law or statute setting forth a different presumption or process for cases involving the reporter's privilege.

3. Nature of appeal

The primary vehicle for obtaining a review of a final order by the New Hampshire Supreme Court is Supreme Court Rule 7, Appeal from Lower Court Decision on the Merits. It is also possible to obtain review under Supreme Court Rule 11, Petition for Original Jurisdiction. Appeals to the Supreme Court from a trial court’s decision on the merits are mandatory in all but a few (and irrelevant) categories. Interlocutory appeals and petitions for original jurisdiction remain discretionary and, therefore, the Supreme Court may refuse to accept them.

4. Standard of review

Although there is no statutory provision or case law specifically setting forth the standard of review, in State v. Siel, 122 N.H. 254 (1982), a criminal case involving a defendant seeking to overcome a press privilege to withhold a confidential source, the New Hampshire Supreme Court utilized a deferential standard in reviewing the findings of the trial court. In upholding the order of the trial court judge (Souter, J.), the Supreme Court ruled that, in regard to the third prong of the Siel test, "[w]e cannot say that no reasonable person could find as did the trial judge." State v. Siel, 122 N.H. at 260. Decisions vested within the discretion of the trial court are reviewed by the Supreme Court using the "unsustainable exercise of discretion" standard where the appellant has the burden of demonstrating that the trial court's ruling was "clearly untenable or unreasonable to the prejudice of [the] case." State v. Lambert, 147 N.H. 295, 296 (2001). In contrast, questions of law are reviewed by the Supreme Court de novo. State v. Paulson, 143 N.H. 447, 449 (1999).

5. Addressing mootness questions

There are no cases addressing the mootness issue arising when the trial or grand jury session for which a reporter was subpoenaed has concluded. It should be noted, however, that the Supreme Court accepted, over the State's mootness objection, a petition by the electronic media for courtroom access in a criminal case that had already concluded. Petition of WMUR Channel 9, 148 N.H. 644 (2002).

6. Relief

There is no statutory or case law addressing the specific relief available to a media party seeking relief from a court order to disclose. Nonetheless, there can be little doubt that it is within the power of the Supreme Court to order a contempt citation dissolved, as it is likewise within the Court's power to order the trial judge to reconsider the issue below in light of the appellate court decision.

C. Third-party subpoenas

D. The source's rights and interests

New Hampshire articulated the standard for balancing a source’s right to anonymous free speech against a plaintiff’s right to protect its reputation in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227 (2010):

[T]he trial court should first require the plaintiff to undertake efforts to notify the anonymous poster that they are the subject of a subpoena or application for an order of disclosures, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application . . . The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

Finally, assuming the court concludes that the plaintiff has present a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.

160 N.H. at 237-238. The Court reiterated that the process must be undertaken on a case-by-case basis. Id.